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Challenging a redundancy whilst on maternity leave

Posted by BDBF on 1 November, 2017

In our practice we often hear women start their stories with “when I announced my pregnancy I noticed…” or “it all started when I returned from maternity leave…” or (sometimes) worse “I am on maternity leave and they’ve told me they’re getting rid of my job”.

A recent report from the Department for Business, Innovation and Skills and the Equality and Human Rights Commission on pregnancy and maternity discrimination certainly paints a bleak picture for women in the workplace. One in nine mothers reported being dismissed, singled out for redundancy where other colleagues were not, or subjected to such poor treatment that they felt they had to leave.

If you scale up these findings, it suggests that as many as 54,000 mothers in the UK are subjected to potentially discriminatory treatment at work each year. What is even more depressing is that only 1% of victims take legal action. Perhaps the recent abolition of Tribunal fees will help but, although it is a welcome step forward, on its own it is not enough to tackle these dreadful statistics.

Announcing your pregnancy and preparing to go on maternity leave should be moments to treasure but they can also make for worrying times if your workplace has a bad track record in its treatment of working parents. It is for this reason that there is protective legislation in place for pregnant women and those on maternity leave to try and make sure that their jobs are secure on return to work. Whilst the statistics do not make for pleasant reading, one way that women can protect themselves is by being fully appraised of their legal rights.

The Regulation 10 right

The right which this article is going to focus on is Regulation 10 under the Maternity and Parental Leave Regulations.

Regulation 10 grants women on maternity leave additional protection in the event that their role is placed at risk of redundancy (this right falls away immediately on return from maternity leave). More specifically, if an employee’s role is put at risk of redundancy whilst on maternity leave, the employee is entitled to be offered “suitable alternative employment”. This duty extends beyond merely offering the opportunity to apply for a role – the role must be offered unequivocally without any interview or selection process.

Crucially, an employee on maternity leave is given priority over any suitable alternative vacancy ahead of other employees who have been put at risk of redundancy but are not on maternity leave; in essence, she gets “first dibs”. It is a unique example of compulsory positive discrimination and working mothers should ensure that they make the most of this right.

What is suitable alternative employment?

For a role to be “suitable” it needs to be: (i) appropriate for the employee to do in the circumstances; and (ii) on terms which are not substantially less favourable than the job the employee used to have.

A dispute often arises as to what is or is not deemed suitable, which sadly is often driven by whether the employer actually wants the employee on maternity leave to return to work.

The factors which are usually taken into account include the scope of the role, the employee’s experience, the geographical location and whether it will increase the employee’s travel time or childcare costs.

Whether a role is suitable is determined from the point of view of an objective employer – not from the employee’s perspective. However, in practical terms it is difficult for employers to reach a fair conclusion unless they consult with the employee. It is at this stage (assuming that an employee on maternity leave has been made aware of the redundancy and given an opportunity to engage in the process – which is sadly not always the case) that an employee will need to consider how flexible (or inflexible) they are willing/able to be and make the employer expressly aware of this. This will make an employer’s ability to deem a job “unsuitable” more difficult. Equally, no one wants to be shunted into a role which in reality is unsuitable, amounts to a demotion or is unworkable from a practical perspective. Either way, it is important to engage in a dialogue with your employer, and debate all of the available options.

Failure to offer suitable alternative employment

If an employer fails to offer a suitable alternative role (either entirely or by offering it to an employee who is not on maternity leave) and this results in the employee being made redundant, the dismissal will be automatically unfair.

If, however, there is no suitable alternative employment the employee’s employment (and maternity leave) will come to an end by reason of redundancy. The employer is still required to give notice (unless there is a contractual provision for notice to be paid in lieu). An employee’s right to statutory maternity pay continues regardless of the fact that their employment has terminated but any enhanced maternity pay will come to an end.

It is worth remembering that an employer’s duty to offer suitable alternative employment continues until such time as the dismissal takes effect. So, even when an employee on maternity leave is given notice of termination by reason of redundancy, if a suitable alternative vacancy becomes available during her notice period, the “first dibs” rule afforded by Regulation 10 continues to apply.

Even if a suitable alternative vacancy is not available, an employee may still have a separate right of action for ordinary unfair dismissal or discrimination on the grounds of sex, maternity or pregnancy. For example, if it is a sham redundancy, if a fair procedure was not followed (for example, there was no consultation or the selection exercise was not objective), or the decision to dismiss was in some way linked to the employee’s pregnancy, maternity leave or sex. With this in mind, it is vital that an employee on maternity leave engages with the redundancy consultation process and interrogates the employer’s decisions as much as possible – admittedly not an easy feat when sleep-deprived and caring for a baby.

Ruth Gamble is a Partner and Emily Plosker is a Senior Associate at City employment law firm BDBF.